HKSAR v. Choy Wai Shing and Another

DCCC 369 & 729/2020 (Consolidated)

DCCC 988/2020

(Heard Together)

[2021] HKDC 722

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 369 AND 729 OF 2020

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 988 OF 2020

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(Heard together)

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REASONS FOR SENTENCE

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1.The 2^nd and 3^rd Defendants in DCCC 369 and 729/2020 plead guilty as charged in that case. The 1^st Charge was made against both of them, that they, together with the 1^st Defendant, (who had earlier been dealt with before another judge) on a day unknown between 14 and 22 March 2019, both days inclusive, in Hong Kong, having entered as trespassers part of a building known as Room B, 4^th Floor, No. 81 Lai Chi Kok Road, Mong Kok, stole an air-conditioner therein.

2.The 2^nd Charge was made against the 3^rd Defendant only, for failing to surrender to custody without reasonable cause.

3.In addition, the 2^nd Defendant in DCCC 369 and 729/2020 also pleads guilty to three charges in DCCC 988/2020, namely theft, driving without a valid driving licence, and using a motor vehicle without third party insurance.

DCCC 369 & 729/2020

4.The location of the 1^st Charge of burglary was a unit at a residential building.  The unit had just finished renovation prior to the offence period and was unoccupied.  A padlock and a plastic chain were used to lock up the gate of the unit.  They were later found to be missing, and the metal gate and the door of the unit were prised open.  An air-conditioner inside the unit was missing as well, and six pieces of cigarette butts, one glove and a pair of socks were found inside the unit. 

5.Fingerprints lifted from the door and metal gate matched those of the 1^st and 3^rd Defendants, whereas DNA samples from the cigarette butts and the glove matched those of the three Defendants and the 2^nd Defendant respectively.

6.For the 2^nd Charge against the 3^rd Defendant only, his bail was extended at the West Kowloon Magistracy on 23 April 2020, and he was required to attend the same Magistracy on 3 June 2020.  He failed to do so and a Warrant of Arrest was issued.  He was thereafter located and arrested by the police on 2 July 2020.

DCCC 988/2020

7.The owner of the motorcycle in question left the motorcycle at the offence location on 1 April 2020 without locking the wheels.  Several hours later, the motorcycle was missing.  The owner did not report to the police as the motorcycle was of little value.

8.On 17 April 2020, the Defendant parked the motorcycle at a rear lane. His actions were captured by the CCTV camera of a nearby shop.  He was arrested shortly afterwards, and an Allen key was found in his right front trousers pocket.  Under caution, he admitted taking and driving away the motorcycle on the day in question. 

9.Upon inspection of the motorcycle, the owner found that the keyhole, petrol gas cover, left handle, both sides of the body and the left paddle were damaged. 

10.It was also discovered that the Defendant was not a holder of a valid driving licence, and had driven the motorcycle without third party insurance.

Background and Mitigation of the 2^nd Defendant in DCCC 369 & 729/2020 and DCCC 988/2020

11.I shall deal with the background and mitigation of the 2^nd Defendant in DCCC 369 and 729/2020, and also his case in DCCC 988/2020 as the only Defendant. I shall hereinafter refer to him as the “2^nd Defendant”. 

12.The 2^nd Defendant is 52 years old and single.  He received primary school education and was a construction worker at the time of arrest. He has 46 previous convictions with 82 charges, three of which were burglary charges in 2000, 2006 and 2011; 23 were theft, theft from vehicle and attempted theft charges; 2 charges of tampering with motor vehicle; 4 charges of taking conveyance without authority; 7 charges of driving without a valid driving licence; 7 charges of using a motor vehicle without third party insurance and one charge of driving whilst disqualified.

13.Concerning the burglary charge, defence counsel submits that the 2^nd Defendant did not take part in the breaking in by damaging the door, the gate, the padlock and the chain.  He went to the unit upon the 1^st Defendant’s invitation to drink and smoke therein.  He entered as a trespasser and took part in the stealing of the air-conditioner after the entry.  Counsel submits that the role of the 2^nd Defendant was minor and opportunistic.  The authority of HKSAR v Cheung To Ming [2006] 2 HKLRD 259 was submitted. 

14.Counsel also submits that the unit was unoccupied and there were no personal belongings inside, and therefore it was a less serious kind of burglary.

15.For the theft charge, Defence submits that the motorcycle was of minimal value, and that there was no evidence that the 2^nd Defendant had caused the damage to the motorcycle.  The charge relates to the day of the arrest and not the day in which the motorcycle was first stolen.  It is submitted that the 2^nd Defendant was not the first thief who stole the motorcycle, and that it was an opportunistic crime.  Counsel confirms that there is no claim of abandoned property. 

16.Defence asks for consideration of the totality principle in sentencing the two cases.

Background and Mitigation of the 3^rd Defendant in DCCC 369 & 729/2020

17.The 3^rd Defendant is 48 years old and was a delivery worker before arrest.  He has nine previous convictions, out of which was a robbery conviction in 1994. 

18.It is submitted that he had attended the unit concerned upon the invitation of the 1^st Defendant.  The location was not locked at the time of his entry, and the 3^rd Defendant did not take part in prising of the metal gate and door.  Defence submits that it was an opportunistic crime, and the 3^rd Defendant had acted out of momentary greed. 

19.It was also urged to the court that the unit was vacant, and that a lower starting point should be adopted.

20.Concerning Charge 2, it is submitted that the period of failing to surrender to custody was short and the police had been able to locate the 3^rd Defendant without much difficulty.  His excuse for not attending court as required was a lapse of memory. 

Sentence of the 2^nd Defendant for DCCC 369 & 729/2020 and DCCC 988/2020

21.Before fixing of trial date, the 2^nd Defendant indicated that he would plead guilty to all three charges of DCCC 988/2020.  He indicated his willingness to plead guilty to Charge 1 of DCCC 369 and 729/2020 shortly before the trial date.

22.In HKSAR v Cheung To Ming [2006] 2 HKLRD 259, the appellant, who was an illegal immigrant, pleaded guilty to burglary involving two packets of instant noodles, and remaining in Hong Kong without the authority of the Director of Immigration.  The facts indicated that he had walked into the open door of a non-domestic premises, and consumed the two packets of instant noodles.  He was sentenced to 20 months for burglary.  The Deputy District Judge considered that there were no aggravating factors and accepted that the starting point of burglary of non-domestic premises was 2½ years’ imprisonment.  The only mitigating factor was said to be the plea of guilty.

23.The Court of Appeal in Cheung To Ming applied HKSAR v Sim Ka Wing (unreported, CACC 450/2000), which states that the conventional starting point has the built-in factor of a degree of premeditation and planning, thus it can be lowered in the case of a sneak thief who walked into premises after others had broken into it.  The appellant’s appeal against sentence was allowed and a term of 12 months’ imprisonment was substituted.

24.Although the gloves found at the scene bore the DNA of the 2^nd Defendant, his fingerprints were not found on the door and metal gate of the unit.  This is consistent with the 2^nd Defendant having used the gloves for removing the air-conditioner, but neutral in respect of the breaking-in.  As the 2^nd Defendant submitted that he was not the person who physically performed the breaking in, I am prepared to accept that his presence upon the premises as a trespasser was as a result of the invitation of the 1^st Defendant, who in turn did not have any authority to enter the unit.  In that sense his role can be seen as an opportunistic one. 

25.On the other hand, there is an aggravating feature in his offence.  He has a long history of criminal convictions, many of which were dishonesty-related, and three were burglary.

26.I have considered the personal background of the 2^nd Defendant and all mitigation submitted on his behalf.  The usual starting point for burglary of domestic premises is one of 3 years.  As his role was opportunistic, I will lower the starting point to one of 2.5 years.  Due to the aggravating feature mentioned, I will increase the starting point by 2 months, ie to 2 years and 8 months.  Due to his guilty plea after the fixing of trial date, one-fourth discount will be applied, and the 2^nd Defendant is sentenced to 2 years for Charge 1 of DCCC 369 and 729/2020.

27.For DCCC 988/2020, I accept that the motorcycle was of low value, and that it was an opportunistic crime.  There are, however, also the presence of aggravating feature.  The 2^nd Defendant has previous convictions with 29 charges of theft-related offences, tampering with motor vehicle and taking conveyance without authority.  He also has seven sets of driving without a valid driving licence and using a motor vehicle without third party insurance convictions, and one driving whilst disqualified conviction. He had been repeatedly sent to prison for these types of offences.  A sufficiently deterrent sentence must be passed in this case.

28.For Charge 1 of DCCC 988/2020, I will adopt a starting point of 1 year and 9 months’ imprisonment.  Due to his numerous similar convictions, it is increased by 3 months to 2 years’ imprisonment.  A timely plea has been entered, and therefore I will discount the sentence by one-third.  The 2^nd Defendant is sentenced to 16 months’ imprisonment for Charge 1.

29.For Charge 2 of DCCC 988/2020, I accept that there had not been an accident.  I adopt a starting point of 4 months’ imprisonment.  It is enhanced by 0.5 months due to his multiple similar convictions, making it 4.5 months’ imprisonment.  Due to his guilty plea, the 2^nd Defendant is sentenced to 3 months’ imprisonment.

30.For Charge 3 of DCCC 988/2020, I accept that there had not been an accident.  I adopt a starting point of 8 months’ imprisonment.  It is enhanced by one month due to his multiple similar convictions, making it 9 months’ imprisonment.  Due to his guilty plea, the 2^nd Defendant is sentenced to 6 months’ imprisonment.

31.For the disqualification order, the 2^nd Defendant had been made subject to such orders repeatedly.  The last disqualification order made against him was made on 20 May 2016 for 3 years, in relation to the same type of offence.  Less than one year after the expiry of the last disqualification order, the 2^nd Defendant committed the present offence.  I am of the view that despite the absence of an accident, the maximum duration of disqualification is justified.  The 2^nd Defendant is disqualified for 3 years for Charge 3.

32.I have considered the totality principle and I shall order that 15 months of the sentence of Charge 1 of DCCC 988/2020 to be served consecutively to the sentence of DCCC 369 and 729/2020, with the rest of it to be concurrently.  The sentences of Charges 2 and 3 of DCCC 988/2020 shall be served concurrently with the sentences of DCCC 988/2020 and DCCC 369 and 729/2020.  The 2^nd Defendant is sentenced to a total of 3 years and 3 months’ imprisonment and a disqualification order of 3 years.

Sentence of the 3^rd Defendant in DCCC 369 & 729/2020

33.The 3^rd Defendant indicated his guilty plea of Charge 2 at the mention hearing and of Charge 1 after the trial date had been fixed. 

34.Although fingerprints lifted from the door and metal gate of the unit matched those of the 3^rd Defendant, there is no other evidence from the prosecution negating the Defence’s claim that the 3^rd Defendant had not taken part in prising the door and gate.  The presence of fingerprints could be equally consistent with the 3^rd Defendant having touched the door and metal gate as he moved the air-conditioner from the unit. I am therefore prepared to accept that it was an opportunistic crime on the part of the 3^rd Defendant.

35.I am therefore also of the view that there is room for lowering the starting point from the usual one of 3 years for burglary of domestic premises.  I have considered the 3^rd Defendant’s personal background, conviction record and all mitigation advanced on his behalf, as well as the facts of the case.  I shall adopt a starting point of 30 months’ imprisonment.  He had indicated his plea of guilty after the trial date had been fixed, and therefore a one-fourth discount will be applied.  The 3^rd Defendant is sentenced to 22 months and 2 weeks’ imprisonment for Charge 1.

36.Concerning Charge 2, I have considered the duration of the failure to surrender to custody.  I do not consider the reason for failing to attend court as cause for lowering the sentence.  I shall adopt 9 weeks as the starting point.  A timely plea was indicated, and I therefore apply a one-third discount.  The 3^rd Defendant is sentenced to 6 weeks’ imprisonment for Charge 2.

37.I have considered the totality principle, and have decided to order that 2 weeks of the sentence on Charge 2 shall be served concurrently with that of Charge 1.  The 3^rd Defendant is sentenced to a total of 23 months and 2 weeks’ imprisonment.